Citation Nr: 0501188
Decision Date: 01/14/05 Archive Date: 01/19/05
DOCKET NO. 00-17 151 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for cancer of the base of
the tongue, including as a result of exposure to herbicides.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Ivey, Counsel
INTRODUCTION
The veteran served on active duty from July 1965 to July
1968.
This case comes before the Board of Veteran's Appeals (the
Board) on appeal from a March 1999 rating decision of the St.
Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO), in which entitlement to service
connection for cancer of the base of the tongue as a result
of exposure to herbicides was denied.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In January 2004 the Board sought an opinion from the
Veteran's Health Administration regarding the location of the
primary site of the veteran's cancer and whether the base of
the tongue or the periepiglottic fold were part of the
larynx. In March 2004 the Chief of Staff of the VA Boston
Healthcare System provided the requested expert medical
opinion from the Chief of Otolaryngology (ENT) Section of
their Surgical Service.
In September 2004 the Board sent the veteran's representative
a waiver of solicitation form due to the Court of Appeals For
Veterans Claims (CAVC) decision in Padgett v. Principi, 18
Vet. App. 188 (2004). Although the Court withdrew its
opinion in Padgett the veteran's representative, in October
2004, sent a statement indicating that the veteran was not
waiving his right to initial review of the opinion by the
Agency of Original Jurisdiction (AOJ). This statement was
attached to a "Motion For Remand" submitted by the
veteran's representative. This matter must be remanded for
AOJ review.
To ensure full compliance with due process requirements, the
appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC, for the following
development:
Readjudicate the issue on appeal. If any
benefit sought on appeal is not granted
to the appellant's satisfaction, both the
appellant and his representative should
be provided a SSOC, that addresses all
evidence obtained since the October 2001
SSOC, including the March 2004 VHA
opinion, and afforded the appropriate
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. VA will notify the appellant if
further action is required on his or her part.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).